At the end of December, in a major escalation of a conflict with Poland that has been rumbling on for the past two years, the European Commission recommended triggering the so-called Article 7 procedure, the first ever against an EU member state. This followed its criticisms of the Polish government – led, since autumn 2015, by the right-wing Law and Justice (PiS) party – as posing a threat to the rule of law.

The Commission’s original concerns stemmed from a dispute over appointments to, and the functioning of, Poland’s constitutional tribunal, but since last July escalated to include the government’s controversial judicial reform programme. The Commission argued that, as a result of a set of 13 laws passed by the Law and Justice-dominated parliament, the ruling party had undermined the independence of the judiciary which meant that the constitutionality of the country’s legislation could no longer be guaranteed.

What is the procedure in practice?

Member states are likely to vote on whether to enact Article 7 at an EU General Affairs Council meeting scheduled for the end of February.

In the first stage of the procedure the decision on whether the Polish reforms constitute a ‘clear risk of a serious breach of rule of law’ requires the support of 22 of the EU’s remaining 27 members (Poland is excluded from the vote) to move to the next stage.

Given that France and Germany have already signalled that they will back the Commission, most other EU states are likely to fall into line, so blocking the Article 7 procedure at this stage would be a huge diplomatic triumph for Law and Justice and Mr Morawiecki.

However, a subsequent vote to trigger sanctions against Poland – including, in the worst-case scenario, suspending the country’s European Council voting rights – requires unanimity and the Hungarian government, for one, has made it clear that it will oppose such a move.

This formulation does not seem quite right in procedural terms to me, although the substance is the same. The point is that in EU voting at the Council of Ministers level (ie the forum where member state governments decide action) there are different sorts of voting arrangements for different areas and different steps in such a process.

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2 …

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council …

So there is a three-step process, involving different sorts of ‘qualified majority vote’ (ie a vote where a simple majority of member states supporting the proposition is not enough):

Special QMV (4/5 of member states) for establishing that there is a serious risk of a breach

Unanimity for determining that there is a breach in fact

QMV under usual voting rules for responding to the serious breach against the sinning state concerned .

For the purposes of Article 7 of the Treaty on European Union on the suspension of certain rights resulting from Union membership, the member of the European Council or of the Council representing the Member State in question shall not take part in the vote and the Member State in question shall not be counted in the calculation of the one third or four fifths of Member States referred to in paragraphs 1 and 2 of that Article. Abstentions by members present in person or represented shall not prevent the adoption of decisions referred to in paragraph 2 of that Article.

For the adoption of the decisions referred to in paragraphs 3 and 4 of Article 7 of the Treaty on European Union, a qualified majority shall be defined in accordance with Article 238(3)(b) of this Treaty.

Where, following a decision to suspend voting rights adopted pursuant to paragraph 3 of Article 7 of the Treaty on European Union, the Council acts by a qualified majority on the basis of a provision of the Treaties, that qualified majority shall be defined in accordance with Article 238(3)(b) of this Treaty, or, where the Council acts on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, in accordance with Article 238(3)(a).

*swoooooons*

The POINT in all this is that in the EU a member state has power only by being able to block a decision. If a capital dutifully does what Berlin/Paris and/or the Commission propose, they lose all influence/leverage.

An even higher than usual QMV is needed to launch the investigation risk of a serious breach. Why? Because accusing a member state of such a breach of core EU principles is a Big Deal, and not to be taken lightly.

Hence the only vote that really matters is a vote by unanimity. Any member state can block!

This is why the EU Budget and some other key areas of EU policy are decided this way. Germany of course won’t let everyone else force Germany to pay more into the central Pot. Greeks and Romanians can’t force Germans to pay more money to (say) Greeks and Romanians!

So, questions.

Which states might swing to support Poland to mount a blocking minority if there is a QMV vote in February to ‘determine’ that there is a serious risk that Poland is in the wrong?

And, crucially, if that vote nonetheless passes, will any one member state under a vote by unanimity block completely any determination that there is fact a serious breach?

If it in fact looks highly likely there will be at least one member state (say Hungary or even UK – we’re still paying our dues haha) blocking a vote by unanimity any determination against Poland, why go down this route at all? Won’t Brussels end up looking ridiculous?

There is of course no chance that a decisive vote by unanimity will be taken at Poland’s expense.

Why?

Because there will be some member states who think either (a) that the case against Poland in itself is weak, or (b) that they don’t like the precedent being set by Bullying Brussels.

Conclusion?

As previously argued here, if EU HQ Brussels wants to galvanise Law and Justice and its supporters in Poland, this sort of thing is just the way to do it. It plays straight to deep-rooted Polish senses of grievance/victimhood and so on. Jarosław Kaczynski is a superhuman genius at exploiting this sort of thing.

Aleks Szczerbiak gets the last word:

The government’s supporters will, on the other hand, continue to vigorously deny that Law and Justice has any plans for ‘Polexit’, while framing the Article 7 debate in terms of a defence of national sovereignty.

They will argue that Poland’s dispute with the Commission is a political one and not about the rule of law, while presenting the government as the defender of Polish national interests against the EU political establishment’s interference in the country’s domestic affairs.

This narrative not only solidifies Law and Justice’s support among its core voter base, it also potentially casts the government’s opponents in a negative light in the eyes of less politically committed Poles…

If the government can persuade Poles to interpret the Article 7 procedure in this way then playing the ‘rule of law’ card could end up backfiring on both the EU political establishment and Law and Justice’s domestic opponents.

Don’t threaten something you can’t deliver. You look (and are) weak.

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Comments (1)

An excellent example of the EU poking its nose into areas undreamt of only a few years ago. Look forward to the day when the EU intsitutes proceedings against, for example, Member States whose voting arrangements are not basd on proportional representation. Needless to say, the EU would not institute such proceedings, either in the present case or in this hypothetical case if ir was a question of, say, the French or German parliaments/governments.